The Rise and Fall of Spanish “Super-Judge” Baltasar Garzón

Baltasar
Garzón, a high-profile Spanish judge and leftwing champion of the legal
doctrine of universal
jurisdiction, has been charged with abuse of power. Spanish Supreme Court investigating
magistrate Luciano Varela charged Garzón with knowingly overstepping his
jurisdiction by launching an illegal investigation into political crimes
committed during and after the 1936-1939 Spanish Civil War.

The indictment
of Garzón has implications that reach far beyond Spain. A guilty verdict would effectively
terminate Garzón’s career as a judge, and thereby deprive the global Left of
one of its most ambitious legal activists. It would also mark the beginning of
the end of Spain’s foray into cross-border jurisprudence, which has been branded
as politically motivated harassment of select right-leaning foreign
governments, including in Israel and the United States.

Considering
that the Spanish Civil
War ended more than 70 years ago, and that Franco died in 1975, few
suspects, even if identified, would be alive today to stand trial. But the main
objection to Garzón’s probe has stemmed from the fact that he decided to limit
his investigation only to crimes committed by the right-wing Nationalists (ie,
the Francoists). His enquiry did not extend to political crimes committed by
the left-wing Republicans (anti-Francoists), which included Marxists, liberals
and anarchists. Republican death squads murdered
up to 70,000 clergy, nuns and ordinary middle class Spaniards in a
veritable reign of terror that largely contributed to the rise of Franco.

Garzón’s
supporters say Spain needs an honest accounting of its troubled past and they
view his probe as seeking a long-overdue indictment, even if only a symbolic
one, of the Franco regime. But the one-sided nature of Garzón’s probe has
sparked outrage among Spanish conservatives. They accuse the judge (who in 1993
took a leave of absence to run for a seat in Spanish parliament as a member of
the Socialist party, but returned to the bench in anger only a year later after
he was passed over for Justice Minister) of political grandstanding and
pursuing a personal vendetta against them.

After a
number of conservative
groups filed complaints against Garzón for not applying the law equally,
the Supreme Court appointed Varela to examine the case. In a 14-page
ruling, Varela concluded that Garzón had manipulated the course of justice
by knowingly violating a 1977 amnesty law that shields all sides, including members
of the Franco dictatorship, from legal persecution. Moreover, a 2007
Law of Historical Memory, explicitly gave the lower courts (not Garzón’s
high court) jurisdiction over locating and digging up the mass graves that
still dot the Spanish countryside.

Varela charged
that Garzón, in order to get around these restrictions, tried create law rather
than administer it. “Aware of his lack of jurisdiction and that the crimes
reported lacked penal relevance when the proceedings began, [Garzón] built a
contrived argument to justify his control of the proceedings he initiated,”
Varela wrote in his ruling.

Garzón
denies any wrongdoing and has defended his probe as legitimate. But even some
of his admirers say vanity is the natural weakness of an ambitious man. Indeed,
some observers believe that Garzón has
come to view himself as an “exceptional” judge, not bound to the laws and Constitution
of Spain, as are other judges. As a result, they say, he is increasingly prone
to overreaching his authority.

In a separate
case, for example, Garzón
is being investigated for asking Emilio Botín, the chairman of Spain’s
largest bank, for a $300,000 grant to pay for a course at New York University
in which the judge participated. At the time, Botín was due to stand trial in
Garzón’s own court on charges of financial misappropriation. After receiving
the grant money, the charges against Botín were dropped.

In another
case, the Spanish
Justice Minister was forced to resign after going on a hunting trip with
Garzón, who was investigating corruption in the opposition Popular Party. PP
leader Mariano Rajoy accused the two men of leaking information to the press in
a bid to influence regional elections, and called on Socialist Prime Minister
José Luis Rodríguez Zapatero to explain the relations between his government
and the judicial authorities.

Garzón
jumped to international fame as a leading proponent of Spain’s doctrine of
universal jurisdiction, which holds that crimes like torture or terrorism can
be tried in Spain even if they are alleged to have been committed elsewhere and
had no link to Spain.

In 1998,
Garzón had former
Chilean dictator Augusto Pinochet arrested during a visit to London,
although Britain ultimately refused to extradite him to Madrid for trial. Since
then, Garzón has used the principle of universal jurisdiction to go after
current or former government officials such as former US Secretary of
State Henry Kissinger, Italian Prime Minister Silvio Berlusconi, and around
100 leaders of the 1976-1983 military junta in Argentina. At one point, Garzón
and his colleagues were pursuing more
than a dozen international investigations into suspected cases of torture,
genocide and crimes against humanity in places as far-flung as Tibet and Rwanda.
But many of these cases have had little or no connection with Spain and critics
say the judges have been interpreting the concept of universal jurisdiction too
loosely.

Calls to reign in the
judges increased when Spanish magistrates announced probes involving Israel and
the United States. In January 2009, Spanish National Court Judge
Fernando Andreu said he would investigate seven current or former Israeli officials
over a 2002 air attack in Gaza. In March, Garzón said he would investigate six
former Bush administration officials for giving legal cover to torture at the
American prison at Guantánamo Bay, Cuba. And in May, another Spanish high-court
judge, Santiago Pedraz, said he would charge three US
soldiers with crimes against humanity for the April 2003 deaths of a Spanish
television cameraman and a Ukrainian journalist. The men were killed when a US
tank crew shelled their Baghdad hotel.

In any case, Garzón and his
colleagues have been highly selective about the cases they take. For example,
they have never tried to prosecute any Palestinian terrorists for war crimes.
Nor have they had much zeal for investigating crimes against humanity in
Chechnya or Darfur. Nor have they prosecuted any of the suspected Nazi war
criminals who sought refuge in Spain after the end of World War II.

In 2009, Attorney
General Cándido Conde-Pumpido asked Garzón to shelve his case against the
Americans and warned of the risks of turning the Spanish justice system into a
“plaything” for politically motivated prosecutions. Instead of heeding that
advice, Garzón opened yet another investigation that seeks information on
everyone who authorized and carried out the alleged torture of four inmates at
Guantánamo Bay.

Concerned that Spain’s
judicial system was being hijacked by left-wing groups out to pursue political vendettas
(and that Spain’s media savvy judges were more interested in scoring political
points than in upholding the law), the Spanish parliament in 2009 passed a bill
to
narrow the scope of the universal jurisdiction law to cases in which the
victims of a crime include Spaniards or the alleged perpetrators were in Spain.

Regardless
of whether Garzón is ultimately absolved of misconduct, the case against him has
badly damaged his reputation and authority. It has also cast a dark shadow over
the entire Spanish justice system. The silver lining is that from now on Garzón
and his colleagues may think twice before pursuing politically motivated cases,
especially outside of Spain.

Kappert’s discussion of the Amnesty Law fits in with my critique of both the Spanish right and left. Kern as well as commentators on this article, although correctly condemning Garzón’s judicial activism, fail to note two crucial facts:

1. The victims of Francoism outnumber those of the Red Terror three to five-fold, and Francoist atrocities continued well after the Civil War.

2. Garzón’s activism was only checked because it came up against the Amnesty Law.

Clearly, the Spanish right is in crisis, as evidenced by the PP’s 2008 Convention. To his credit Garzón did take on death squads irrespective of ideology, but he is now a loose cannon. Unfortunately, he is not being held to account because of his insistence on “universal jurisdiction”, which has damaged Spain’s foreign relations with Israel, the United Kingdom, the United States and other countries. Rather, it is due to his inquiry into Francoist crimes. Clearly, the Spanish right is in crisis (evidenced by the PP’s 2008 Convention), and needs to re-direct its remaining clout to the future and defeating the PSOE, rather than protecting the immunity of right-wing criminals…

It is best to identify the source of 'your' quote, so as to ensure that readers understand what we are dealing with here and to prevent them from mistakenly attributing such nonsense to the author of this valuable article, Mr Kern.

As to prosecuting Castro? That will be done by the Cuban people, long after he is gone and they will have regained their freedom. It should certainly NOT be done by champions of absurd "universal jurisdiction". In any case, the latter are fundamentalists of the 'leftist religion', which means that they hold their beliefs with absolute certainty and that they do not allow any contrary evidence (like Castro's regime) to interfere with their 'certainties'.

Kappert: "Naturally such 'outrageous arrogance' does not fit in the constitutions and auto-understanding of so many countries, vulgar 'sovereignty of nations', independently being democratic or not."

What does it fit into, appointing oneself God's avenger? I don't see how the effort of a people to recover the truth of their history supports their judges' meddling in the criminal law of other peoples, unless you are saying that their extraordinary virtue in one sphere permits them to take extraordinary actions in another sphere. Maybe they should prosecute Castro before it's too late.

Oh Kappert, really. Why on earth should anybody be expected to take your partisan opinions and observations seriously when they know that, had you been alive when the Spanish Civil War was raging, for example, you would have been in favour of letting Franco march on Madrid without firing a single shot in anger. Moreover, you would most likely have characterised the International Brigade as nothing more than a bunch of blood thirsty mercenaries, while no doubt suggesting that the best course of action for the anti-Franco factions would be to take to their heels and head for the Pyrenees. Am I wrong?

Well, would you? Only you know the answer to that question and you have never doubted yourself before. Or are you now finally admitting that perhaps pacifism isn't necessarily the default position you would take, or recommend that others should take, in every conceivable circumstance?

For a journalist in Spain, Soeren Kern tells us astonishingly little about the Spanish Civil War, the Franco and post-Franco era. Unlike post-fascism times in Germany, Italy, Portugal or Greece, the Spanish public never resolved crimes during the fascist Franco regime. On contrary, Franco himself proclaimed (King) Juan Carlos as his successor, former Franco ministers kept their office and their influence, later former Falange members achieved high positions in the Spanish democracy. The mass executions and tens of thousands of disappearances of civilians between 1936 and 1952 were never investigated, due to a 1977 amnesty law that shields the criminals from legal persecution. Still there are countless references as streets and places in the name of fascists, the vale de los caídos is a popular meeting place for the right-wingers. It is remarkable that super-judge Garzón is attacked when it comes to domestic crimes, which in fact was only possible with the work of the Association for the Recovery of Historical Memory (Asociación para la Recuperación de la Memoria Histórica), a group of about 50 Spanish archaeologists, anthropologists and forensics scientists. The group tried to identify the places of execution through records and interviewing the locals. Only with their achievements, judge Garzón could act. Before that, he was applauded for his effort to fight left-wing separatist group ETA, to bring Chilean Dictator Pinochet on trial (the UK protected Pinochet on health grounds) and contributed to the recognition that locally protected statesmen and criminals may encounter themselves in a tribunal. Naturally such 'outrageous arrogance' does not fit in the constitutions and auto-understanding of so many countries, vulgar 'sovereignty of nations', independently being democratic or not. So it is very hard to investigate Operation Condor, Gaza bombings or Guantanamo torture.

It is intriguing that this reversal of fortune was precipitated not by attempts to interfere in foreign jurisdictions, but by investigating the Civil War. Evidently, the Supreme Court regards Franco's memory as more important than relations with Israel and the United States, just as these "exceptional judges" ignore left-wing crimes. Spain still has a long way to go in finding a place in the post-Cold War era.

Thanks for the good news. It is outrageous that the Spanish government -- through its judiciary -- has appointed itself to prosecute non-Spaniards for alleged crimes committed against non-Spaniards on non-Spanish soil. That violates the sovereignty of the nations where the alleged crimes were committed, and the sovereignty of the nations that have a legitimate interest in enforcing criminal law to protect their own citizens. Hopefully in the not-too-distant future, the leftist clowns will lose power in Spain and will no longer be in a position to make their great country a laughingstock.

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